Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, May 30, 2014

"The mother's unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court's determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child's best interests."

In August 2008, the
New York State Legislature enacted a law that requires the court to "hold a
mandatory conference within sixty days" after the plaintiff (bank) files the
initial papers commencing a foreclosure action. The stated purpose for these
conferences is to hold "settlement discussions pertaining to the relative rights
and obligations of the parties under the mortgage loan documents...to help the
[borrower] avoid losing his or her home[.]" CPLR Rule 3408(a). Each party is
required to send a representative to each settlement conference "fully
authorized to dispose of the case." CPLR Rule 3408(b). "Both the plaintiff
[bank] and defendant [homeowner] shall negotiate in good faith to reach a
mutually agreeable resolution, including a loan modification, if possible." CPLR
Rule 3408(f).

Since 2009 there have
been close to 200,000 foreclosure cases filed in New York State. See 2013
Report of the Chief Administrator of the Courts (available at https://www.nycourts.gov/publications/pdfs/2013ForeclosureReport.pdf)
An incomplete assessment has calculated that almost 100,000 settlement
conferences were held in 2013 alone. Id. Although we don't have
statistics showing how many of these settlement conferences took place in Nassau
and Suffolk Counties, their positions at the top for foreclosure filings since
2008 support an inference that they are at the top in number of settlement
conferences held each year as well.

Each of the 62 New
York counties established their own procedures for settlement conferences.
Nassau and Suffolk both use court referees, not judges, to conduct these
proceedings. Borrowers and their advocates attend these conferences intent on
seeking alternatives to foreclosure, primarily through loan modifications that
would lower the monthly mortgage payment to make it more affordable for the
homeowner whose default was based on a hardship such as loss of employment,
death in the family or disability. However, only 1,378 out of 91,522 conferences
held between October 2012 and October 2013 resulted in settlements discontinuing
foreclosure actions. See 2013 Report of the Chief Administrator of the
Courts. There are many reasons for this woefully deficient number of settlements
coming out of the settlement conference process. From homeowners' perspective,
advocates around New York State share similar stories: banks do not send
representatives authorized to negotiate settlements and don't provide
information necessary for meaningful settlement discussions. And court referees
simply lack the authority to issue meaningful penalties for this abuse of the
settlement conference law.

In direct response to
a survey and report conducted and prepared by legal service advocates in New
York City, the New York State Office of Court Administration is requiring courts
in Brooklyn, Queens, Nassau and Suffolk to have a judge oversee the settlement
conferences starting sometime in June. It is hoped that OCA will
require referees, who will continue to conduct the conferences, to prepare a
report of what transpires at each conference.In this way, when
homeowners and their advocates present their concerns about the bank's failure
to negotiate in good faith to the judge overseeing the conference, they can do
so swiftly and with the expectation that the judge will issue an appropriate
penalty where failure to negotiate in good faith is established. Perhaps the
most significant and available penalty would be the tolling of interest that
will prohibit banks from adding on to the borrowers' debt. With the ready
availability of a judge and the risk of penalty for non-compliance with the law
in front of them, banks may well be more willing to negotiate in good faith to
achieve a settlement that would allow homeowners to remain in their homes while
making payments to satisfy their mortgage loan. "

When someone you love dies, dealing with the personal and financial affairs - on top of the emotional trauma - can be overwhelming. With this first-of-its-kind manual from the ABA and AARP, you can take comfort in knowing that you can handle with ease the matters that arise upon your loved one's death.
The personal record-keeping workbook, packaged with a CD-ROM, walks you through the process step-by-step. The ABA/AARP Checklist for Family Survivors covers these topics and more:

Applying for survivors' benefits

Paying outstanding bills and handling insurance

Sorting through the stuff - physical and digital

Writing the obituary and dealing with the funeral home

Navigating the grief process and taking care of yourself

While there are a number of books on matters of grief and financial planning, this is the first - from AARP and the American Bar Association's Senior Lawyers Division - comprehensive guide that answers questions for family survivors in one, straightforward book.

Friday, May 16, 2014

This is from the Nassau Suffolk Law Services May 2014 LAW SERVICES NEWS:
"How to Obtain ADA Accommodations from DSS for Clients
by Ellen Krakow, Staff Attorney
Many individuals who go to the Department of Social Services (DSS) for assistance have disabilities. Sometimes their disabilities prevent the client from doing things DSS requires of them. This can cause application to be denied or essential benefits to be reduced or even terminated. The American with Disabilities Act (the ADA) offers im-portant protections for individuals with disabilities that are designed to prevent such harmful outcomes.
What does the ADA protect?
The ADA protects people with physical, mental or cognitive impairments. These impairments may be the result of a wide array of conditions, such as heart disease, arthritis, diabetes, brain injuries, MS, post-traumatic stress disorder, depression, alcoholism, past use of illicit drugs, as well as many others. The disability must “substantially limit a major life activity.” Major life activities are walking, standing, bending, speaking, manual tasks, seeing, breathing, eating, sleeping, learning, reading, thinking, and concentrating. A person does not need to be receiving SSI or SSD to be covered by the ADA.
What must DSS do for clients with a disability?
If a DSS caseworker knows or suspects the client has a disability that will make it difficult to comply with a DSS rule or request, the caseworker must (1) note the disability in the client’s file so that others at DSS (and DOL in Suffolk County) are similarly aware of the disability, (2) offer the client a reasonable accommodation, even if the client has not requested it or even disclosed their disability, (3) grant a reasonable accommodation request if the cli-ent expressly asked for it, and (4) note in the file the specific accommodation given (or offered the client but not ac-cepted.) 06-ADM– 05
What are some examples of DSS reasonable accommodations?
The exact type of reasonable accommodation DSS must provide depends upon the client’s particular limita-tions and needs. Here are some examples:
•extra time to complete forms, or assistance from DSS in obtaining documents
•having all notices sent to a designated person and/or having designee come to DSS in client’s place
•phone-call reminders of upcoming appointments,
•combining DSS and DOL appointments,
•meetings by phone rather than at the DSS center,
•home visits by a DSS caseworker if the client is homebound or if they care for someone who is,
•supports at a work activity or pre-work assignment training,
•placement at an emergency housing facility with handicapped accessibility, or a facility close to the client’s treatment provider
•sign-language interpreters or other communication services for the hearing impaired,
•written material in large font or Braille.
Whenever possible, the client should submit written documentation of the disability when requesting the accommo-dation. This is especially true if the disability is not apparent, such as a mental health condition. Most helpful are letters from treating physician stating the client’s diagnosis and particular limitations.
What can be done if DSS denies the reasonable accommodation request?
Should DSS reject the ADA request, the client (or advocate) should submit a written grievance to the DSS ADA Compliance Officer, who will do an investigation, issue findings, and correct the caseworker’s action if he/she concludes the request should have been granted. In Suffolk County, grievances should be sent to John Nieves, ADA Compliance Officer, Suffolk County DSS - Commissioner’s Office, 3085 Veterans Memorial Hwy., Ronkonkoma, NY 11779, (631) 854-9983, fax # (631) 854-9996. In Nassau County, grievances should be sent to Ellen Abber-bock, ADA Compliance Officer, Nassau County DSS, 60 Charles Lindbergh Blvd., Uniondale, NY 11553, (516) 227-7779. If the grievance is not resolved in the client’s favor or is not resolved timely, advocates should im-mediately contact our Legal Support Center for Advocates at (631) 232-2400. Examples of advocate letters requesting reasonable accommodations are on our website, www.nslawservices.org, under the Self-Help and Legal Info tab."

Wednesday, May 14, 2014

The
issue of children’s rights covers a broad spectrum of topics, each of which is
important to address not only for the sake of these children, but for the
future of stable communities. Physical and sexual abuse, discrimination and
neglect are just some of the issues children frequently face. Many are
struggling for a proper education, not to mention their need for food, clothing
and shelter. Fortunately, there are several resources for information and help.Among the agencies are government
organizations and non-profits, which are always looking for help securing these
children’s futures. Here is a list of just some of the resources available to
help bolster children’s rights:

·90%
of all children involved in cases presented before the Family court in New York
City are represented by The
Juvenile Rights Practice. These cases range from abuse and neglect to
parental rights, PINS (People In Need of Supervision) and juvenile delinquency
programs.

·For
information on child custody laws in New York, you can contact LawNY
for topics ranging from custody definitions, joint custody rules and child
support to paternity visitation rights.

·The
Office of Temporary and Disability Assistance offers information and services
concerning paternity
establishment, which can be crucial in custody and child support cases.

·The
ACLU works
diligently to protect the rights of abused and overlooked children both in the
United States and abroad. The organization focuses on issues including the
current Boy’s Prisons system, juvenile life without parole and death
sentencing, child welfare institutions, and teaching.

Services

·The
NYC
Administration for Children’s Services is a staff of social workers and
family specialists who address youth concerns among foster parents and the
general public in cases related to the child welfare program.

A
number of studies have shown disparity in disciplinary practices administered
in the educational system, with harsher penalties being distributed to
minorities – including suspension, expulsion, and even arrest. Many of the
offenses are minor and non-violent infractions.
This has led to a larger number of minority students who are not getting an
education, as explained in this NY
Times op-ed piece.

The
Obama Administration responded to this issue in 2014 with a 35–page
document released by Secretary of Education, Arne Duncan and Attorney
General Eric H. Holder. The document not only outlined an unfair bias aimed
mainly at black and disabled students, but also outlined an alternative to the
current Zero Policy approach.
The addition of police officers into the school atmosphere has led to a larger
number of arrests. The administration advised using a softer approach including
setting a more positive environment including guidance and addressing issues
through guidance, before they become problems. Of course, additional costs and
entrenched systems threaten to thwart progress in this area.

The
Children’s Defense Fund is also actively investigating this issue with the Cradle to Prison Pipeline
Program – which addresses the growing problem of poor and minority children
and young adults caught in the penal system.

The
Advocates for Children of New
York works to help end discriminatory practices against children that can
lead to academic failure.Programs
target poor, disabled, minority and immigrant students, and those from
non-English speaking backgrounds, as well as those involved in both the
juvenile justice system and foster care.

Foundations

·The Children’s Defense Fund is a nationally
based non-profit organization that has been working for the benefit of children
for more than 40 years. They have offices all across the country, including in
New York. The group works diligently to lift children from poverty, abuse and
neglect; as well as ensuring access to quality healthcare, quality education
and creating a moral and spiritual foundation.

·The Partnership for Children’s
Rights is a non-profit, New York based law firm that focuses on helping
disadvantaged children. The focus is mainly on helping with access to special
education services and social security disabilities.

·Children’s Rights is an organization
based in New York City that focuses on the abuse and neglect of children caught
up in the welfare system, including those that are just stuck and/or lost in
the system unnecessarily. The group works to make broad improvements in the
lives of abused and neglected children, with the goal of promoting every
child’s right to a stable and safe home.

·The
Children’s Rights Council and CRC Kids work to promote
stronger family bonds, encouragingbetter child-rearing through strong support from both parents.

·The
New York Center for Children
is a non-profit organization offering free services that are all
child-friendly. They offer comprehensive evaluation and therapy services for
the victims and family members suffering from abuse. Abuse prevention services
are offered as well.
In addition to these services, extra benefits for the children include tutoring
and mentoring services as well as extra-curricular activities.

·The
New York Center for Child Development is a
nonprofit organization that focuses on the mental, social and academic growth
for children. The group works with children from birth through age five,
striving to identify and address developmental and mental health challenges.

Author Bio:

This
is a guest post by Sarah Brooks from people search. She is a Houston based
freelance writer and blogger. Questions and comments can be sent to
brooks.sarah23 @ gmail.com."

Many times I have consulted with people who are disputing end of life plans of deceased relatives: these disputes are costly, time consuming and emotionally draining - perhaps some tranparency with relatives making end of life plans can prevent this.

Monday, May 12, 2014

I heard of OurFamilyWizard before - it is a website which "provides a neutral zone for parent communication to help...manage the challenges of shared parenting with a former spouse or partner".

At a recent CLE, they were a sponsor and I received certain materials. To get an idea as to how contentious shared parenting can be, visit the website, view the program or click below to see a sample order language showing how courts can incorporate the use of the OurFamilyWizard website into a parenting/custody plan:

Thursday, May 8, 2014

This chart is from a web article on the subject titled "1 in 3 homes is unaffordable and a bubble is forming". Line 2 states that in New York, 41.8% of the homes are unaffordable by historic standards while the percentage of monthly income that needs to be devoted to median housing is 31.6% (not sure if that figure of mortgage payments also includes real estate taxes).

The full link to this article, which appeared last month, can be found here:

Thursday, May 1, 2014

New York State Assembly Bill No. A08342 would provide uniform access to court-ordered forensic mental health evaluation reports and underlying data by litigants, counsel and the attorney for the child in child custody and visitation cases.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/